United States District Court, D. Hawaii
GARY J. MARTINEZ, Plaintiff,
SEAN STACKLEY, Secretary of the Navy; JAMIE K. KALOWSKY, CMDR, Captain Pearl Harbor Navy Shipyard and Intermediate Maintenance Facility, Defendants.
ORDER GRANTING MOTION FOR DISMISSAL AND SUMMARY
JUDGMENT OF DEFENDANTS SEAN STACKLEY, SECRETARY OF THE NAVY
AND JAMIE K. KALOWSKY (ECF NO. 35)
Gillmor, United States District Judge.
Gary J. Martinez has filed a form Complaint against the
Secretary of the United States Navy and Captain Jamie
Kalowsky, Commander of the Pearl Harbor Navy Shipyard. The
form Complaint alleges federal claims of employment
discrimination based on Plaintiff's disability, race,
national origin, and age. Plaintiff also asserts that one of
his former supervisors violated his rights under the Privacy
attached nearly 500 pages of documents to the form Complaint,
including hundreds of pages of hand written statements by
Plaintiff and Plaintiff's wife.
filings are difficult to decipher and contain unintelligible
pleadings. The Court construes Plaintiff's pleadings
liberally and, viewing the record in a light most favorable
to Plaintiff, concludes that Plaintiff is not entitled to
Defendants' Motion for Dismissal and Summary Judgment
(ECF No. 35) is GRANTED.
August 26, 2016, Plaintiff filed the form Complaint along
with more than five hundred pages of attachments. (ECF No.
same date, he filed an Application To Proceed In District
Court Without Prepaying Fees and Costs. (ECF No. 3).
August 31, 2016, the Magistrate Judge issued an ORDER
GRANTING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES, DIRECTING SERVICE, AND DIRECTING THE
CLERK'S OFFICE TO SEND PLAINTIFF A REQUEST FOR
APPOINTMENT OF COUNSEL FORM. (ECF No. 9).
September 9, 2016, Plaintiff filed a REQUEST FOR APPOINTMENT
OF COUNSEL UNDER THE CIVIL RIGHTS ACT OF 1964; 42 U.S.C.
§ 2000e-5(f)(1)(B). (ECF No. 11).
September 15, 2016, the Magistrate Judge issued a FINDINGS
AND RECOMMENDATION TO DENY PLAINTIFF'S REQUEST FOR
APPOINTMENT OF COUNSEL. (ECF No. 14).
October 5, 2016, Plaintiff filed an Objection to the
Magistrate Judge's Findings and Recommendation. (ECF No.
October 14, 2016, the Court issued an ORDER ADOPTING THE
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION, AS
MODIFIED. (ECF No. 16).
24, 2017, Defendants filed a MOTION FOR DISMISSAL AND SUMMARY
JUDGMENT OF DEFENDANTS SEAN STACKLEY, SECRETARY OF THE NAVY
AND JAMIE K. KALOWSKY and a Concise Statement of Facts in
Support of their Motion. (ECF Nos. 35, 36).
19, 2017, Plaintiff filed pleadings requesting an extension
of time to respond to Defendants' Motion. (ECF Nos. 38,
20, 2017, the Court issued a Minute Order granting
Plaintiff's request for an extension of time to file his
Opposition. (ECF No. 40).
31, 2017, Plaintiff filed a pleading entitled,
“OPPOSITION TO THE MOTION FOR DISMISSAL AND SUMMARY
JUDGEMENT [sic] OF DEFENDANTS SEAN STACKLEY, SECRETARY OF THE
NAVY AND JAMIE K. KALOWSKY.” (ECF No. 41).
same date, Plaintiff filed a pleading entitled,
“CONCISE STATEMENT IN SUPPORT OF PLAINTIFF'S
OPPOSITION TO THE MOTION FOR DISMISSAL AND SUMMARY JUDGEMENT
[sic] OF DEFENDANTS SEAN STACKLEY, SECRETARY OF THE NAVY AND
JAMIE K. KALOWSKY.” (ECF No. 42).
August 10, 2017, Defendants filed a REPLY MEMORANDUM IN
SUPPORT OF MOTION FOR DISMISSAL AND SUMMARY JUDGMENT OF
DEFENDANTS SEAN STACKLEY, SECRETARY OF THE NAVY, AND JAMIE K.
KALOWSKY. (ECF No. 43).
November 3, 2017, Plaintiff filed a pleading entitled,
“NO REPLY IN SUPPORT OF PLAINTIFF MOTION AND ANSWER TO
DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR DISMISSAL FILED ON
AUGUST 10, 2017 ALSO REQUEST FOR EXTENSION OF TIME TO REPLY
TO COURT DECISION OF SUMMARY JUDGMENT.” (ECF No. 44).
December 22, 2017, the Court issued a Minute Order holding
the scheduling deadlines in abeyance. (ECF No. 46).
January 29, 2018, the Court issued a Minute Order granting
Defendants' Motion for Dismissal and Summary Judgment and
vacating the trial date and all deadlines. (ECF No. 48). This
written order sets forth the basis for the summary decision
issued in the January 29, 2018 Minute Order.
Gary J. Martinez alleges that he is a sixty-one year old man,
of Hispanic and American Indian heritage. Plaintiff's
voluminous and difficult to decipher pleadings attempt to
allege federal claims of employment discrimination and a
violation of the Privacy Act.
the pleadings liberally and in favor of the Plaintiff, the
record sets forth the following facts:
2014 Employment Agreement
August 14, 2014, Plaintiff Martinez signed an Employment
Agreement with the Pearl Harbor Naval Shipyard and
Intermediate Maintenance Facility to work in the position of
“painter helper.” (Employment Agreement dated
August 14, 2014, attached as Ex. 3 to Def.'s Concise
Statement of Facts (“CSF”), ECF No. 36-7). A
painter helper is responsible for assisting painters at the
Shipyard by suppling tools and work materials, preparing
surfaces for painting, and performing sandblasting. (Painter
Helper Job Description, attached as Ex. 2 to Def.'s CSF,
ECF No. 36-6).
worked in Shop 71 at the Shipyard which is responsible for
blasting old paint off of ships and submarines and for
repainting them. (Declaration of Chad Candido, General
Foreman at Pearl Harbor Naval Shipyard, (“Candido
Decl.”) at ¶ 2, ECF No. 36-1). About 85% of the
Shop's work is done inside submarines and the remaining
15% of work is done off-hull, where items are removed from
ships and are blasted and painted. (Id. at
employment as a painter helper was contingent on
Plaintiff's ability to work in confined spaces.
(Employment Agreement dated August 14, 2014, attached as Ex.
3 to Def.'s CSF, ECF No. 36-7). Plaintiff's
Employment Agreement included fifteen separate numbered
paragraphs explaining the requirements of the position, which
Plaintiff was required to review and initial. (Id.)
One of the paragraphs explained the nature of Plaintiff's
work in confined spaces, specifically in submarines. The
paragraph, which was initialed by Plaintiff, provided:
2. Confined Spaces - The majority of the shipyard's
workforce assists with the repair of submarines. Any FWS
employee or waterfront support employee must be capable of
performing work on submarines and in tight, enclosed or
partially enclosed confined spaces. If I am unable to perform
duties on submarines and in tight, enclosed or partially
enclosed confined spaces, my employment with PHNSY&IMF
may be terminated during my probationary period or my removal
from Federal service proposed once I have passed my
(Id. at p. 2).
signed and initialed the Employment Agreement and on
September 28, 2014, he began work as a painter helper.
(Id. at p. 3; Final Agency Decision dated May 24,
2016, at p. 2, ECF No. 1-5).
2015 Accident On The USS Asheville And Temporary Assignment
To The Corrosion Control Center
claims that on January 6, 2015, while he was working as a
painter helper on a submarine project on the USS Asheville,
he suffered an injury. (Navy Equal Employment Office
Specialist Carla Kishimori's EEO Counselor's Report
dated August 10, 2015, at p. 3, attached to Pla.'s
Complaint, ECF No. 1-9, pp. 4-14). Plaintiff alleges that his
head was sucked into an uncovered pipe, causing him to lose
his helmet and headlamp. (Id.)
alleges that following the incident, on January 21, 2015, his
primary supervisor, Mr. Jonathan Andres, assigned Plaintiff
to report back to the USS Asheville project to recover grit
in the ship's tank. (Id.) Plaintiff stated that
he experienced vertigo, anxiety, nausea, and vomiting as a
claims that a few weeks later, on February 9, 2015, he was
informed that he was to report to the Shipyard's
Corrosion Control Center where he would be completing
painting and blasting tasks off-ship. (Id.)
Plaintiff believed that the assignment was to keep him off of
the USS Asheville project after he had experienced vertigo
and anxiety on January 21, 2015. (Id.) Plaintiff
worked in the Corrosion Control Center for 106 days without
2015 Reassignment Back To The USS Asheville
26, 2015, General Foreman Candido reassigned Plaintiff
Martinez and three or four other employees back to the USS
Asheville project. (Candido Decl. at ¶ 6, ECF No. 36-1).
days later, on May 28, 2015, Plaintiff objected to his
reassignment back to the USS Asheville project and he
submitted a letter request to General Foreman Candido.
(Letter from Plaintiff to Foreman Candido dated May 28, 2015,
attached as Ex. 5 to Def.'s CSF, ECF No. 36-9). The
Letter was titled as a “Request for Reasonable
Accommodations.” (Id.) The Letter asked that
Plaintiff be permanently reassigned to work off-ship,
exclusively in the Corrosion Control Center. (Id.)
Candido referred Plaintiff's request to the Navy Equal
Employment Opportunity Office. (Declaration of Lacy Lynn,
Supervisory Equal Employment Opportunity Specialist with the
U.S. Navy, (“Lynn Decl.”) at ¶ 2, ECF No.
May 27, 2015 Doctor's Note For Claustrophobia
May 28, 2015, Plaintiff submitted a doctor's note to
Foreman Candido. (Candido Decl. at ¶ 6, ECF No. 36-1).
The Note was dated May 27, 2015, and the entirety of the note
stated, as follows:
I have seen the above mentioned patient today for anxiety.
Patient should have Modified duty, Patient is suffering from
Claustrophobia, should not work in tight spaces.
from David Samsami, M.D., dated May 27, 2015, attached as Ex.
4 to Def.'s CSF, ECF No. 36-8).
he received the medical note, General Foreman Candido gave it
to the Process Manager for the Paint Shop, Christopher Byas.
(Declaration of Christopher Byas at ¶ 4, attached to
Def.'s CSF, ECF No. 36-4). Process Manager Byas then gave
a copy of the doctor's note to LeVaughn Carter, the
steward of the Painters' Union to which Plaintiff
belonged. (Id. at ¶ 3). Process Manager Byas
was later reprimanded by the Navy for giving the letter to
the union steward. (Privacy Act Letter, attached to
Pla.'s CSF as Ex. 3, ECF No. 42-3).
Review of Plaintiff's Reasonable Accommodation
Plaintiff's May 28, 2015 Reasonable Accommodation Request
Letter, the Navy Equal Employment Opportunity Office engaged
in meetings and interviews with Plaintiff and his co-workers
and convened a Panel to review his request for
accommodations. (Report of Marie E. Robichau, Investigator
for the Navy Equal Employment Opportunity Office, at p. 3,
attached as Ex. 1 to Def.'s CSF, ECF No. 36-5).
claims that on June 4, 2015, his primary supervisor Herman
Carson gave Plaintiff a Medical Referral form and directed
him to the Naval Health Clinic Hawaii for a medical exam.
(Final Agency Decision at p. 6, ECF No. 1-5). Plaintiff did
not comply. (Id.)
met several times with the Navy Equal Employment Opportunity
staff and stated that he did not want to go through with the
reasonable accommodations process but did not want to put the
statement in writing. (Lynn Decl. at ¶ 5, ECF No. 36-3).
Reasonable Accommodations Panel determined that Plaintiff
could not perform the essential functions of his painter
helper position because he was unable to work in confined
spaces. (Lynn Decl. at ¶ 4, ECF No. 36-3). The
Panel's recommendation was to offer Plaintiff job
2015 Plaintiff Declined Job Reassignment As A Reasonable
2, 2015, Shop Superintendent Vince Yokoyama sent Plaintiff a
letter entitled, “OPTION OF A REASSIGNMENT AS AN
ACCOMMODATION.” (Letter from Vince Yokoyama to
Plaintiff dated July 2, 2015, attached as Ex. 7 to Def.'s
CSF, ECF No. 36-11).
July 2, 2015 letter explained to Plaintiff that he could not
be accommodated in his current position of painter helper
because the position required that work be performed in
confined spaces on submarines, which was contrary to his
doctor's note dated May 27, 2015. (Id.) The July
2, 2015 letter asked Plaintiff if he wished to be considered
for reassignment to a different position where he could
perform the essential functions and meet the job-related
requirements of a new position. (Id.)
13, 2015, Plaintiff sent a letter rejecting the Navy's
July 2, 2015 letter offering the possibility of job
reassignment as an option for a reasonable accommodation.
(Letter from Plaintiff to Shop Superintendent Yokoyama, dated
July 13, 2015, attached as Ex. 8 to Def.'s CSF, ECF No.
36-12). Plaintiff stated in his July 13, 2015 letter that he
did not want to be reassigned to ...